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Balancing and the limitation of rights in the South African Constitution 265
Taking rights seriously. 65 Giving rights the character of principles and
the practice of balancing that this conception of rights implies, so runs
Habermas’s critique, softens them, destroying their essential character as
rules: ‘The fire wall erected in legal discourse by a deontological
understanding of legal norms and principles collapses.’ This understanding
of rights stems from the Kantian conception of rights as having
priority over the pursuit of collective goals. But treating rights as principles
gives them no special priority, instead rights and policy goals ‘compete on the
same plane within the context of proportionality analysis’. 66
Alexy’s response is rehearsed in the discussion of the weight formula
above. The balancing enquiry does not give rights priority over competing
principles, but is capable of giving them additional weight. This, coupled with
procedural advantages for the applicant in constitutional cases, presumptions,
burdens of proof and the two-stage methodology of rights analysis gives
considerable advantages to the rights claimant. Proportionality and
balancing, properly practiced, are not an all-things-considered analysis. 67
6 Conclusion
Balancing is a metaphor used to describe the process of legal reasoning in
rights cases. It is an apt metaphor to describe a process that entails finding a
resolution to a problem of competing principles by the ascription of relative
weights to the competitors. This is a process made inevitable by the
particular structure of the South African Bill of Rights; a generous
catalogue of rights, each of which is expressly qualified by the possibility
of limitation in the service of countervailing considerations. Balancing
ought then to be defended and the nature of the process, its ‘internal
justification’ as Alexy terms his deductive scheme, should be made visible in
the interests of laying bare the legal reasoning behind decisions in
constitutional rights cases.
65
There is more to say about this issue, but I will leave the heavy lifting to the article by
Bilchitz in this volume. See Bilchitz ‘Does balancing adequately capture the nature of
rights’ in S Woolman & D Bilchitz (eds) Is this seat taken? Conversations at the Bar, the
bench and the academy about the South African Constitution (2012) 267.
66 M Kumm ‘Political liberalism and the structure of rights’ (n 12 above) 142.
67 There is, accordingly, much force in Woolman & Botha’s (n 24 above) criticism of the
particular form of balancing and proportionality enquiry engaged in by the
Constitutional Court which inclines on occasion to such an analysis.